Thursday, January 30, 2014

In his recent decision on the limited tort case of Putnam v. Phillips, No. 11337-CV-2012 (C.P. Erie Dec. 18, 2013 Connelly, J.), Judge Shad Connelly granted a defendant’s Motion for Partial Summary Judgment by ruling
the Limited Tort restriction applied to the different plaintiffs and that the
record did not establish any serious injuries.

In his decision,
Judge Connelly addressed the applicability of the Limited Tort restriction under
75 Pa. C. S. A. Section 1705(b)(2) and ultimately ruled the limited tort option did
apply. Conflicting tort options existed in the different households where
the minor plaintiffs were alleged to reside.

In his decision, Judge Connelly addressed the applicability of the Limited Tort option under 75 Pa.C.S.A. Section 1705(b)(2). In the end, the limited tort option covering the
vehicle the plaintiffs occupied, which was owned by their mother who had
selected the limited tort option, was deemed to control. The plaintiffs father held a
full tort policy but his vehicle was not involved in the accident.

Another Facebook decision has been brought to my attention.....this one out of York County.

In his November 4, 2013 decision in the case of Hunter v. PRRC, Inc., No. 2010-SU-3400-71 (C.P. York Linebaugh, P.J. ), President Judge Stephen P. Linebaugh ruled that a defendant must meet a threshold showing of relevant information on a Plaintiff's public social media/Facebook pages before access to the private pages of the site would be allowed. There must be a showing of a reasonable probability that relevant information will be also found on the private pages of the site.

The court also noted that a Plaintiff also retained the right to request a protective order if the allowance of the discovery would cause unreasonable annoyance, embarrassment, etc. under Pa.R.C.P. 4012.

In this case, the court ultimately ruled that the defense had not met the threshold showing and, as such, the motion to compel was denied.

Monday, January 27, 2014

Tort Talkers may recall the case of Lipsky
v. State Farm previously being summarized here which involved the issue of
whether an emotional or mental distress claim by a physically uninjured
bystander who witnessed a family member get hit and killed by a car amounts to a “bodily injury” to trigger
coverage under the policy covering the tortfeasor driver’s car.

The Pennsylvania Superior Court previously ruled that such circumstances do
meet the definition of a “bodily injury” in this context.

The policy at issue in Lipsky v. State Farm Mutual Automobile Insurance provides
coverage for "bodily injury to a person and sickness, disease or death
which results from it."

Here is a LINK to the Superior Court’s previous Opinion (including the concurring and dissenting Opinions of the 2-1 decision), written by then
President Judge Correale F. Stevens in the case.Judge Stevens is now a member of the Pennsylvania
Supreme Court, but did not participate in this matter when it came before the
highest court. As such, there were only six Justices available to review the issue and, yes, they split down the middle.

On January 23, 2014, an evenly split six-justice Pennsylvania Supreme Court
issued a per curiam Order indicating that it could not reach a consensus on the
matter thereby allowing to stand the previous Superior Court ruling that a
negligent infliction of emotional distress claim by plaintiff allegedly arising
from the witnessing of a family member being killed by a car is indeed a distinct
bodily injury covered by the tortfeasor’s automobile insurance policy. Anyone wishing to review the Supreme Court's Order may click this LINK.Source: Article by Zack Needles, "Pa. High Court Stalemate Lets Emotional Distress Claim Stand." The Legal Intelligencer (1/27/14).

The court had
previously held in this matter that the insurer's underinsured motorist (UIM) rejection
forms violated 1731(c) as there was additional language that the insurer incorporated into
the rejection form over and above the language mandated by the statute. The plaintiff filed a motion seeking class certification and
appointment of counsel on the issues presented.

Judge Robert D. Mariani
Federal Middle District
Court of PA

Judge Mariani denied
the request for a class certification as the requirements of Fed.R.C.P. 23(a)(1)
regarding numerosity, commonality, and predominance were not met.

The Court ruled
that even though UIM coverage was not validly waived under the forms at issue, each individual
class member's entitlement to benefits would otherwise depend on a host of other individualized
considerations pertaining to the facts of each policyholder's accident and
injuries.

Accordingly, the court found that there was no no need to bind the all of the policyholders to a determination
of an action they have not manifested any desire to join. As such, the class action
certification was denied by the court and the request for an appointment of class counsel was deemed to be moot.

Anyone wishing to review Judge Mariani's decision in the case of Webb may click HERE.

I send thanks to Attorney Scott Cooper of the Harrisburg law firm of Schmidt Kramer for bringing this case to my attention.

Of note is the court's application of the Third Restatement applies to product
liability actions in Pennsylvania and its ruling that it is unclear as to whether the assumption of risk doctrine applies under that Third Restatement in these types of cases.

In the context of this case, the court also ruled that designs and technical drawings are not to be considered to be products. The court also found that allowing others to copy a design does not
make those parties, the seller of a product.

Moreover, the court held that a company whose employees modified a product
at a customer’s request is not entitled to summary judgment on the issue of substantial
modification, as the modification, made by the defendant’s own employees, was
arguably foreseeable.

The Tort Talk Products Liability Restatement Scorecard, listing a number of case on the debate over whether to apply the Restatement (Second) or the Restatement (Third) can be viewed HERE.

I send thanks to Attorney James Beck, writer of the excellent Drug and Device Law Blog and who is affiliated with the Philadelphia office of the Reed Smith law firm for bringing this case to my attention.

A split Pennsylvania Supreme Court issued a ruling on January 21, 2014 in the case of Lance v. Wyeth, 17 EAP 2011 (Pa. 2014) finding that drug companies are not immune to products liability claims in Pennsylvania for defective drugs.

In this case, the plaintiff was attempting to drug companies under allegations that the companies were negligent in testing, marketing and designing their prescription drug products, including the diet drug Redux.

The majority opinion was written by Justice Thomas G. Saylor who was joined by Justices Max Baer, Debra M. Todd and Seamus P. McCaffery. Justice J. Michael Eakin wrote a dissenting opinion, in which Chief Justice Ronald D. Castille joined.

Anyone interested in reviewing the majority opinion may click this LINK. The dissenting opinion can be viewed HERE.

For a more detailed analysis of the import of the Lance decision, including any impact it may have on the pending debate on whether the Restatement (Second) or Restatement (Third) should be applied in Pennsylvania products liability cases, check out today's blog post from the excellent Drug and Device Law Blog HERE.

I send thanks to Attorney Ken Newman of the Pittsburgh office of Thomas, Thomas & Hafer for bringing this case to my attention.

Tuesday, January 21, 2014

In its January 21, 2014 Opinion in the UIM offset case of AAA Mid-Atlantic Ins. Co. v. Ryan, No. 12 MAP 2013 (Pa. 2014)(Opinion by Todd, J.), the Pennsylvania Supreme Court addressed the issue of whether, under a UIM policy of insurance, the amount of the insured injured party's recovery may be offset by the amount of all damages paid in satisfaction of the underlying judgment, or by only the amount of compensation paid under the auto insurance policy of the underinsured third party tortfeasor defendant who caused the accident.

By way of further background, the injured party plaintiff filed a third party lawsuit against the defendant tortfeasor driver, along with a separate lawsuit against the City of Philadelphia and PennDOT asserting a defective design of a roadway.

The case against PennDOT was dismissed prior to trial by agreement.

The third party tortfeasor driver settled by tendering his $25,000 liability limits.

The remaining case against the City of Philadelphia proceeded to an arbitration in which the arbitrator awarded the Plaintiff a gross award of $500,000 but apportioned liability among the parties as 50% against the defendant tortfeasor driver, 35% against the injured party plaintiff, and 15% against the City.

Taking away 35% apportioned to the injured party plaintiff from the gross award entered resulted in a net award of $325,000.

Pursuant to the doctrine of joint and several liability which applied in this matter, the City paid the plaintiff $300,000 and, as noted, the defendant driver paid his $25,000 liability limits. Thus, the plaintiff was paid the full amount awarded.

Thereafter, the injured party plaintiff turned to her own auto insurance carrier, AAA Mid-Atlantic Insurance Company for UIM coverage.

The UIM carrier denied coverage under its "Limit of Liability" clause which provided, in pertinent part, that "[t]he limit of liability shall be reduced [] by all sums paid because of the "bodily injury" by or on behalf of persons or organizations who may be legally responsible."

The "Limit of Liability" clause further provided that "[n]o one will be entitled to receive duplicate payments for the same elements of loss."

After a UIM arbitration panel awarded the injured party plaintiff a UIM recovery that only considered the defendant tortfeasor driver's liability limits in terms of any offset, the UIM carrier litigated the issue up the appellate ladder to the Pennsylvania Supreme Court.

Throughout the appeal process, the conflicting public policy interests of (1) cost containment and (2) compensating those injured by a tortfeasor who lacks adequate coverage, were hotly debated.

As noted, by the time the case reached the Pennsylvania Supreme Court, that Court framed the question presented as involving whether a UIM recovery may be offset against all damages paid in satisfaction of an underlying third party judgment, or may such a UIM recovery only be offset by the amount paid out under the defendant tortfeasor driver's automobile liability insurance policy.

After thoroughly analyzing the variety of cogent arguments raised on both sides of the issue, the Pennsylvania Supreme Court in the case of AAA Mid-AtlanticIns. Co. v. Ryan ruled that the "Limit of Liability" clause in the UIM policy did not violate the public policy of affording compensation to parties injured by underinsured drivers since, under the facts of this case, the injured party was fully compensated for his injuries by receiving the entire amount of damages awarded by the underlying third party arbitration panel through payments by the defendant tortfeasor driver and the City of Philadelphia.

In addition to there being no violation of the public policy noted under the circumstances presented in this case, the Pennsylvania Supreme Court also noted that the application of the "Limit of Liability" clause also upheld the long-standing rule against allowing a plaintiff a "double recovery" for the same injuries.

Stated otherwise, as the injured party plaintiff was found to have been fully compensated for her injuries in this matter, the underlying purposes of Pennsylvania's Motor Vehicle Financial Responsibility Law would not be furthered by allowing for an additional recovery against the UIM carrier for the same injuries claimed.

Anyone wishing to review the Pennsylvania Supreme Court's decision in the case of AAA Mid-Atlantic Ins. Co. v. Ryan may click this LINK.

Sunday, January 19, 2014

In his recent January 15, 2014 Opinion in the case of Borrelli v. AIU North Americam, Inc., No. 0430, Control No. 13110820 (C.P. Phila. Jan. 15, 2014 Bernstein, J.), Judge Mark I. Bernstein of the Philadelphia County Court of Common Pleas granted a UIM carrier's motion for summary
judgment based on collateral estoppel in a case where the Plaintiff proceeded through an agreed upon high/low arbitration with the tortfeasor defendant first.

More specifically, the injured party plaintiff insured, with consent of the
carrier, settled the third party claim by way of a binding arbitration, in which the arbitrator
entered an award of less than policy limits.

The injured party plaintiff insured then filed a UIM
case in Philadelphia County against the UIM carrier. The UIM carrier filed a Motion for Summary Judgment based upon the application of the collateral
estoppel doctrine.

After finding that all of the elements of the collateral estoppel doctrine were met under the circumstances presented, the court granted the UIM carrier's Motion for Summary Judgment. The court ruled that the issue of the full amount of damages to which the plaintiff was entitled had been previously litigated and determined to be less than the tortfeasor's liability limits, thereby precluding any UIM recovery.

It remains to be seen if this decision will be appealed.

Anyone wishing to review Judge Bernstein's Opinion in Borrelli may click this LINK.

I send thanks to Attorney Susan Weiner of the Philadelphia Legal - Law Offices of James L. Barlow for bringing this case to my attention.

Friday, January 17, 2014

In his recent Order without an Opinion in the Post-Koken case of Hoinski v. Farrell and Erie Ins. Co., No. 7270-CV-2013 (C.P. Luz. Co. 2013 Hughes, J.), Judge Richard Hughes of the Luzerne County Court of Common Pleas denied Preliminary Objections filed by the UIM carrier seeking a severance of claims.In doing so, the court followed the general rule in Luzerne County of keeping Post-Koken cases consolidated at least through discovery.In this Hoinski case, the UIM carrier sought severance particularly in light of the fact that the tortfeasor was charged with a DUI and the Complaint sought punitive damages against the tortfeasor. The UIM carrier argued that it would be too prejudicial to be coupled with such a co-defendant at trial.

Judge Richard Hughes
Luzerne County

Judge Hughes denied the Preliminary Objections for severance without prejudice to the UIM carrier's right to file a later motion for bifurcation with the trial judge.
Anyone wishing to review this Order may click this LINK.

I send thanks to Attorney Ann Farias of the O'Donnell Law Offices for bringing this decision to my attention.

Monday, January 13, 2014

On Wednesday, January 8, 2014, the Pennsylvania Supreme Court promulgated
Pa.R.J.A. No. 1910 (effective 7/1/2014), permitting, for apparently the first time ever in Pennsylvania, the broadcasting,
televising, recording and photographing of non-jury civil proceedings (excluding
divorce, custody and support cases), provided that the parties or witnesses do not
object and the trial judge grants express permission.
Here is a LINK to a copy of the Rule if you are interested in reading the same.

Thursday, January 9, 2014

Below is a link to an interesting recent post on the Drug and Device Law Blog regarding the recent amendments to the Judicial Code of Conduct as it relates to judicial recusal due to campaign contributions received. I thank Attorney James Beck, a writer for that blog and an attorney with Reed Smith in Philadelphia for bringing this to my attention:

In Fisher, the plaintiff was allegedly trespassing on the defendants' land while riding an ATV. The plaintiff rode the ATV over a berm and into a mining pit.

The Court reiterated the rule of law in Pennsylvania that a trespasser may recover for injuries sustained on
land only if the possessor of land was guilty of wanton or willful negligence
or misconduct.

The Superior Court in Fisher rejected the plaintiff's argument that, because they were
foreseeable trespassers, that an ordinary negligence standard should have been applied.

The trial
court in Fisher had ruled that the ordinary negligence standard applies when dangerous activity
is being carried out on the land and not when, as here, the injuries were due to a
dangerous condition existing on the land.

The court also noted that, in any event, with respect to foreseeable trespassers, landowners and possessors of land are only liable for injuries sustained by the trespasser if the injured party establishes that the defendant had acted willfully or with wanton misconduct.

Despite plaintiffs' production of a mining expert opinion
that the landowner defendants failed to correct hazardous conditions created by lack of
guard rails or berms, the Superior Court in Fisher found that the plaintiffs encountered a
mining pit that was generally made inaccessible to the public and was an
obvious danger to anyone.

The appellate court found no evidence that the landowner and mining operator recklessly
disregarded a risk to trespassers such that there was a willingness to inflict
injury.

Anyone wishing to review the Majority Opinion in Fisher may click HERE. Judge Mundy's Dissenting Opinion can be viewed HERE.

Monday, January 6, 2014

Not sure if this link will work (I have been advised that it would), but here is a LINK to a December 24, 2013 Pennsylvania Law Weekly article by Max Mitchell in which I am quoted (along with Attorney Paul Oven of the Moosic, PA law firm of Dougherty, Leventhal & Price) analyzing the recent trend of jury verdicts in Northeastern Pennsylvania.

Friday, January 3, 2014

The below article of mine appeared in the December 24, 2013 Pennsylvania Law Weekly and is republished here with the permission of the publisher, American Law Media, Inc.

Changes Anticipated for Pa. Civil Litigation Jurisprudence in 2014

by

Daniel E. Cummins

Pennsylvania Law Weekly

December 24, 2014

In last week's column, I reviewed the important cases and trends in Pennsylvania civil litigation matters over the past year. As President John F. Kennedy once said, "Change is the law of life." Here's a look into anticipated developments in the law that may change life as we know it as civil litigators in Pennsylvania.

Currently, there are a number of important civil litigation issues pending before the Pennsylvania appellate courts, the results of which could significantly impact the way litigators practice in the years ahead. Moreover, notable changes over the past year in Pennsylvania statutory law, as well as the Rules of Professional Responsibility, are expected to have a significant impact.

Products Liability

In a case of paramount importance to civil litigators, the Pennsylvania Supreme Court heard argument in Tincher v. Omega Flex on Oct. 15. The central issue presented in that case is whether the strict liability analysis of Section 402A of the Second Restatement that most of us learned in law school should be replaced by the Restatement (Third) of Torts analysis, and whether the court's holding in this regard should be applied prospectively or retroactively.

While the Second Restatement calls for a narrow application of negligence principles in the products liability context, the Third Restatement decreases the emphasis upon the concepts of "intended use" and "intended user," while placing a greater emphasis on the doctrine of "reasonable foreseeability."

The changes advocated by the Third Restatement standard would arguably allow for a wider class of injured parties to recover against a manufacturer of a defective product. However, the balance will be shifted in favor the manufacturers of allegedly defective products by creating a higher hurdle for injured parties on the question of liability.

Expert Witness Discovery

Another civil litigation issue that could impact most trial attorneys was argued before the Pennsylvania Supreme Court in the case of Barrick v. Holy Spirit Hospital in April. For full disclosure purposes, note that I drafted the amicus curiae brief on behalf of the Pennsylvania Defense Institute in support of the defense position at the initial Superior Court level only.

In Barrick, the Cumberland County trial court originally ruled that the written communications between a plaintiffs attorney and a medical expert retained for purposes of trial testimony were indeed discoverable. The trial court ruled in this fashion after conducting a confidential in camera review of the communications by plaintiffs counsel with the plaintiff's medical expert and found that such communications could have "materially impacted" the expert's formulation of his opinion.

On the initial appeal, the original three-member panel of the Superior Court affirmed the trial court's decision in favor of the defense argument that the written communications between the plaintiff's attorney and the plaintiff's expert were indeed discoverable.

However, on reargument before an en banc panel of the Pennsylvania Superior Court, the original Superior Court decision was reversed. Based in part upon the application of the attorney work-product doctrine, the en banc panel of the Superior Court instead ruled that these communications between an attorney and an expert in preparation for the creation of an expert opinion for trial testimony were not discoverable. The case was then appealed up to the state's highest court.

The Supreme Court's decision in Barrick will be closely watched by civil litigators, as it could substantially impact how, and to what extent, attorneys may confidentially confer with their experts prior to trial.

Post-Koken Litigation

In terms of other post-Koken issues, here's to hoping that the appellate courts will have many opportunities in 2014 to address numerous other novel questions of importance in the post-Koken era of motor-vehicle accident cases so as to provide much-needed guidance.

Such recurring and troublesome issues include the consolidation versus severance of claims, written discovery issues, whether depositions of UM/UIM claims representatives should be allowed (and, if so, to what extent), bifurcation of trial, admissible trial evidence, and proper jury instructions, just to name a few.

Medical Malpractice

In terms of important legislative changes, the Benevolent Gesture Medical Professional Liability Act was signed into law in October.

Under this new law, in certain limited circumstances, Pennsylvania doctors may now be able to apologize to patients and families in matters of medical malpractice without fear of having such apologies used against them in a court of law.

The act provides that certain benevolent gestures shall be inadmissible at trial as evidence of liability. However, this preclusion of evidence would not apply to a communication, including an excited utterance, which also includes a statement or statements of negligence or fault pertaining to an accident or an event.

The apparent rationale behind the law is that the number of medical malpractice claims may be diminished by such apologies. Whether this change in the law actually results in a decrease in claims in reality remains to be seen.

According to attorney Joseph Walsh of Walsh Pancio, an attorney who defends a number of construction defect claims, these implied warranty claims are generally at the center of complaints filed by homeowner plaintiffs. Consequently, the Pennsylvania Supreme Court's decision in Conway has great potential ramifications for the building industry and insurers who are still providing defenses in these types of claims under a reservation of rights on any coverage questions.

The amended ethical rules now add a requirement that all Pennsylvania attorneys keep abreast of not only changes in the law but also, with the advancement of computer technology, the "benefits and risks associated with relevant technology" in the practice of law. Also emphasized was a greater need to take precautions against inadvertent exposure or disclosure of documents online or otherwise.

As such, it seems that, from this point forward, lawyers need not only be ethical bookworms but, at least in some fashion, computer-literate "techies" as well.

Daniel E. Cummins is a partner and civil litigator with the Scranton, Pa., law firm of Foley Comerford & Cummins. His civil litigation blog, Tort Talk, may be viewed at www.torttalk.com.

Thursday, January 2, 2014

The propriety of a Motion for Reconsideration beyond a 30 day period, the work product doctrine, and the attorney client privilege were all reviewed by Judge Terrence R. Nealon in his most recent decision handed down in the case of Brogan v. Rosenn, Jenkins and Greenwald, No. 2008 - CV - 6048 (C.P. Lacka. Co. Dec. 5, 2013 Nealon, J.).

Lackawanna County Court of Common Pleas

As to the timeliness of a Motion for Reconsideration of a prior Order, Judge Nealon referred to 42 Pa.C.S.A. Section 5505 of the Judicial Code for the rule that such a motion must be filed within thirty days of the challenged order. Under the rule, after the thirty day period, the trial court loses its discretion to modify its prior decision and the order can only be opened or vacated upon a showing of intrinsic fraud, lack of subject matter jurisdiction in the first place, a fatal defect in the record, or some other evidence of extraordinary cause justifying intervention by the court.

As the moving party in Brogan had not filed its Motion for Reconsideration within the thirty day time period, the court denied the Motion as untimely. Judge Nealon went on to review the current status of the work product doctrine and the attorney-client privilege and noted that, even if the court had considered the merits of the Motion, it would have still been denied in any event.

The court provides a nice summary of the interrelationship between the work product doctrine and the attorney-client privilege as applied to discovery disputes and whether documents created by a party's attorney need be produced in discovery.

Anyone wishing to review this decision of Judge Nealon in the Brogan case may click HERE.

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